Samuel Alito on Civil Rights

Supreme Court Justice (nominated by Pres. George W. Bush 2005)

1971: all private sexual acts between consenting adults ok

In 1971, as an undergraduate at Princeton University, Alito headed a student taskforce that wrote a report on "the boundaries of privacy in American society." 22 years before the US Supreme Court struck down sodomy laws in Lawrence v. Texas, Alito's
report said, "no private sexual act between consenting adults should be forbidden," and "discrimination against homosexuals in hiring should be forbidden." This showed prescient thinking at a time when few were speaking out on behalf of gay rights.

Derogatory speech about gays is part of free speech

In 2000, Alito ruled against a school district's anti-harassment policy in Saxe v. State College Area School District. A member of the school board had challenged the policy, contending that his children could not express their view that "homosexuality
is a sin." Alito wrote that the "anti-harassment" policy violated free speech, including the right to make "derogatory" speech on "contentious issues" such as "sexual orientation."

Overturning separate-but-equal OK despite 60-year precedent

BROWNBACK: Brown v. Board of Education overturned Plessy, after Plessy had stood on the books since 1896.
It was depended upon by a number of people for a long period of time. You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy. Now, stare decisis
would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It certainly would be a factor that you would consider in determining whether to overrule it.

ALITO: The court got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled. Separate facilities, even if they were identical, could never give people equal treatment under the law.

Treat religious speech equally with secular speech

SEN. BROWNBACK: You wrote in ACLU v. Schundler, concerning religious displays erected by Jersey City on the plaza of city hall. You upheld the constitutionality of [including symbols from numerous religions]. Are these types of displays constitutionally
permissible?

ALITO: Including both religious and secular symbols was not a violation.

BROWNBACK: What I hear in your opinions is you would rather have a robust public square than a naked public square; that you think there is room for these sorts
of displays in the public square.

ALITO: That was exactly what Jersey City had decided in that case.

BROWNBACK: We’ve had this 40 years of cases, I really hope we can have a public square that celebrates and not that’s got to be completely naked.
[What about] C.H. v. Olivia?

ALITO: This case involved a student who wanted to read the story of Jacob and Esau to the class. And the teacher said no. And we found that was a violation of treating religious speech equally with secular speech.

Racial profiling violates the 4th Amendment

SEN. HATCH: In U.S. v. Kithcart, you held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right?

ALITO: That’s right. That was essentially a case of racial profiling.
And I wrote an opinion holding that that was a violation of the Fourth Amendment.

HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies.
And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case.

ALITO:
That’s correct, Senator.

HATCH: Just to mention a few of these cases that show that you’re going to do what’s right, regardless.

I joined CAP to defend ROTC, not to keep out minorities

SEN. KENNEDY: You indicated in 1985 that you were a member of the Concerned Alumni at Princeton. You called CAP a “conservative alumni group.” CAP published a 1983 essay stating, “Everywhere one turns, blacks & Hispanics are demanding jobs simply because
they’re black & Hispanic.”

ALITO: I disagree with that. I would never endorse it.

KENNEDY: A letter from CAP mailed in 1984-this is the year before you put CAP on your application-to every living alumni, so I assume you received it-which declared:
“Princeton is no longer the university you knew it to be.” As evidence, it cited that admission rates for African-Americans and Hispanics were on the rise. This letter was the subject of a Jan. 1985 Wall Street Journal editorial. This would be right
about the time that you joined the organization.

ALITO: I do not recall knowing any of these things about the organization. What I do recall as an issue that bothered me was the idea of that it was beneath Princeton to have an ROTC unit on campus.

Privacy is a question of interpretation of the Constitution

There is no express reference to privacy in the Constitution. But it is protected by the 4th Amendment and in certain circumstances by the 1st Amendment and in certain circumstances by the 5th and the 14th Amendments. It’s a question of interpretation
rather than simply looking at what is in the text of the document. Griswold talked about emanations and penumbras. It has later been understood by the Supreme Court as being based on the protection of liberty under the 5th Amendment & the 14th Amendment.

Source: Sam Alito Senate Confirmation Hearings
, Jan 10, 2006

The Constitution protects a right to privacy

I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy.
People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy.

Source: Sam Alito Senate Confirmation Hearings
, Jan 10, 2006

The President has to comply with statutes that are passed

The government would have to come forward with its theory as to why the actions that were taken were lawful. If someone has been the subject of illegal law enforcement activities, they should have a day in court.
And that’s what the courts are there for, to protect the rights of individuals against the government or anyone else who violates their rights. And they have to be absolutely independent and treat everybody equally.

Source: Sam Alito Senate Confirmation Hearings
, Jan 10, 2006

Schools cannot limit student speech insulting other students

A parent raised a constitutional challenge to a Pennsylvania school district’s ‘anti-harassment’ policy. It forbade “unwelcome” verbal conduct pertaining not only to race, religion, & sexual orientation, but also to clothing, appearance, social skills,
values, and personal characteristics. The school district said the Constitution permits such limits on speech. Alito disagreed.

Alito said that the policy may be “brave, futile or merely silly.” But by proscribing disparaging speech about a person’s
“values,” the speech code “strikes at the heart of moral and political discourse-the lifeblood of constitutional self-government and the core concern of the First Amendment.”

Alito concluded there is “no categorical ‘harassment exception’ to the First
Amendment” just because of the secondary effects of certain kinds of speech with emotive impact. Such speech, although perhaps “evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections.”

Agrees that women should consult husband before abortion

Alito wrote a dissenting opinion in Planned Parenthood v. Casey, “The Pennsylvania legislature could have believed that some married women are initially inclined to obtain an abortion without their husbands’
knowledge because of perceived problems - such as economic constraints, future plans, or the husbands’ previously expressed opposition - that may be obviated by discussion prior to the abortion.”

Source: Wikipedia.org, “Alito, Case History”
, Nov 1, 2005

Government cannot supress free speech in alcohol ads

Alito wrote a unanimous opinion in The Pitt News v. Pappert, 2004, upholding the right of student newspapers to carry alcohol advertisements on First Amendment grounds.
“If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment.”

Source: Wikipedia.org, “Alito, Case History”
, Nov 1, 2005

Beards are protected religious rights for employees

Case Summary: Abdul-Aziz v. City of Newark (3d Circuit 1999)

Writing for the Court, Judge Alito concludes that a police department?s policy requiring officers to shave their beards, without providing an exemption for
religious reasons, violated the First Amendment rights of two Sunni Muslim officers. -- Verdict for Plaintiffs

Source: FindLaw.com Case Summaries
, Mar 3, 1999

Anti-gay funeral pickets intend emotional distress.

Justice Alito wrote the dissent on SNYDER v. PHELPS on Mar 2, 2011:

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).

The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on
public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.

CONCURRED: BREYER concurs

The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.

DISSENT: ALITO dissents

The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.

Sociological analysis insufficient to prove gender bias.

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.

HELD: Delivered by SCALIA; joined by ROBERTS, KENNEDY, THOMAS & ALITO

The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof.
That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.